Why a special session is needed to fix use-of-force law

If one thing is clear, a judge needs to sort out the mess Washington legislators left around Initiative 940. That is the use-of-deadly-force initiative legislators chose to adopt with an unusual maneuver in March.

If a Thurston County Superior Court judge rules as we hope on a legal challenge, I-940's new standard for police shootings will stand.

However, Gov. Jay Inslee may need to call a special session to let lawmakers re-vote on an amended version of the initiative that was the basis for lawmakers agreeing to adopt I-940. The amended version was a high-level compromise between I-940 backers, police groups, and others.

Unfortunately, legislators rushed to adopt both the initiative and the bill to amend it – all in the same session and in the wrong order. The upshot is their haste to amend I-940 and avoid a ballot fight was probably illegal.

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Thurston County Superior Court Judge Christine Schaller is tentatively scheduled to hear a legal challenge to the Legislature's actions on April 20. The lawsuit was filed by Tim Eyman, who is not a lawyer and is best known for sponsoring anti-tax initiatives.

The thrust of I-940 was changing the state's use-of-force law, which is overly protective of officers and unique in the U.S. Under that 1986 law, an officer who negligently or recklessly shoots someone in the line of duty cannot be held criminally liable unless he, or she, has demonstrated clear malice or evil intent.

Such malice has never been proven even in cases that would lead to manslaughter convictions for anyone not wearing a badge.

The initiative replaces the malice standard with an objective standard that takes into account an officer’s safety concerns (including the safety of others). I-940 also considers what a reasonable officer would do in similar circumstances. And it lays out new police training requirements and an officer’s duty to render first aid.

The new standard is needed to allow for justice and build trust between police and communities.

De-Escalate Washington collected about 350,000 signatures last year to send the measure to the Legislature, and its leaders argue the legislative maneuver to adopt I-940 was constitutional. That much seems clear - after all, adopting an initiative is one of the three options outlined in the state Constitution for initiatives to the Legislature.

Another option was for legislators to put an alternative on the ballot alongside the initiative, which Eyman now wants a judge to require. The third option was no action, letting I-940 pass automatically to the ballot.

Two members of the De-Escalate Washington leadership team - Leslie Cushman, an Olympia attorney, and attorney Lisa Daugaard - argue convincingly that only the timing of the Legislature's approval of amendments to I-940 should be in dispute.

A few newspapers have editorialized against the Legislature’s actions, suggesting it undermines the initiative process. That may be, but lawmakers can fix much of their mistake by re-adopting HB 3003 during a new special session.

That view is shared by Allen Hayward, former legal counsel to the House Republican Caucus. Hayward says legislators erred by adopting the initiative and also amending it during the same legislative session.

Hayward believes the I-940 amendments would have been legal if legislators had simply passed the initiative during their regular session for the year, then voted on HB 3003 in a subsequent special session.

If HB 3003 is struck down, Cushman and Daugaard say the coalition that negotiated the compromise will push for a special session and revote as soon as possible.

In retrospect, the manevering that led to passing and amending I-940 was a terrible way to legislate. In effect lawmakers tried to amend I-940 before it existed as law.

We’d hate to see this kind of legislating happen again. It’s been confusing - enough so that Eyman and others are misleading voters into thinking their right to vote on I-940 was messed with.

It's good that Eyman has called attention to the Legislature's error. But no voter rights were interfered with; voters signing I-940 got their wish once the Legislature adopted the measure.

With luck, Judge Christine Schaller can rule decisively with the kind of well-backgrounded ruling that makes further legal challenges moot.

Once legalities are settled, Gov. Inslee can call legislators back to Olympia for a quick special session to adopt the HB 3003 compromise for a second time.

Quick action by all parties is needed to avoid further confusion about what exactly the expectations are for police when I-940 takes effect on June 7.